Butcher bht Duffy v Habkouk - [2021] NSWDC 500

District Court

New South Wales

Medium Neutral Citation: Butcher bht Duffy v Habkouk [2021] NSWDC 500
Hearing dates: 10 June 2021 with submissions closing 16 September 2021
Date of orders: 22 September 2021
Decision date: 22 September 2021
Jurisdiction: Civil
Before: Wilson SC DCJ
Decision:
Orders at [152]:
1.     the defendant’s amended notice of motion filed 10 June 2021 (and any earlier iterations thereof) is (are) dismissed;
2.     the defendant is to pay the plaintiff’s costs of and incidental to the notice of motion;
3.     the parties are granted liberty to apply within 14 days to vary the costs order;
4.     I list the matter for directions before the presiding Judge of the next sittings of the Court commencing 15 November 2021

Catchwords:
CIVIL – Plaintiff’s father died after being struck by the defendant (intentional tort – battery and negligence alleged) – interlocutory application by defendant for dismissal (as an abuse of process) or a permanent stay (on Anshun estoppel principles) – previous proceedings brought and settled by plaintiff against defendant under Compensation to Relatives Act 1987 (NSW) – following settlement of first proceedings second proceedings brought by plaintiff for mental harm.

Legislation Cited:
Civil Liability Act 2002 (NSW) ss 30, 31
Civil Procedure Act 2005 (NSW) s 76(3)
Compensation to Relatives Act 1897 (NSW) s 5
Family Law Act 1975 (Cth)
Uniform Civil Procedure Rules 2005 (NSW) ss 13.4(1); 13.4(1)(c)

Cases Cited:
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27
Champerslife Pty Ltd v Manojlovski & Anor [2010] NSWCA 33
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] 112 CLR 125
Henderson v Henderson (1843) Eng R 917
Johnson v Gore Wood & Co. [2002] 2 AC 1
Mineralogy Pty Ltd v Sino Iron Pty Ltd [No. 2] (2021) WASCA 105
Port of Melbourne Authority v Anshun (1981) 147 CLR 89
Tomlinson v Ramsey Food Processing Pty Ltd (2015) HCA 28
UBS AG v Tyne [2018] HCA 45

Texts Cited:
None

Category: Procedural rulings
Parties: Kalais Ann Butcher (Plaintiff/Respondent)
George Joseph Habkouk (Defendant/Applicant)
Representation:
Counsel:
Mr R Quickenden (Plaintiff/Respondent)
Mr K Andrews (Defendant/Applicant)
Solicitors:
Brazel Moore Lawyers (Plaintiff)
Effective Legal Solutions

File Number(s): 2020/361375
Publication restriction: None

Judgment

By way of statement of claim dated 17 December 2020, and filed at or about that time, Kalais Ann Butcher (‘the plaintiff’), by her tutor Tara Susanne Duffy, brings an action for pure mental harm against the Joseph George Habkouk (‘the defendant’) under s 30 of the Civil Liability Act 2002 (NSW) (‘CLA’)) and in common law negligence. The plaintiff’s father died as a result of being struck by the defendant outside the Lakes Hotel at The Entrance on 1 January 2018. The defendant was charged with assault causing death. The death was caused by the battery inflicted by the defendant.
In paragraph [11] of the statement of claim it is stated:

The plaintiff has sustained a psychiatric injury in the nature of Avoidance/Restrictive Food Intake Disorder and/or trauma and/or anxiety and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWDC 500
Decision Date: 22 September 2021

CaseChat Overview and Summary

In the case of Butcher bht Duffy v Habkouk, the plaintiff, Butcher, commenced proceedings against the defendant, Habkouk, in the Supreme Court of New South Wales. The dispute arose following the death of Butcher's father, who was allegedly struck by Habkouk. Butcher claimed both battery and negligence. The defendant sought to have the proceedings dismissed or permanently stayed on the grounds of abuse of process or Anshun estoppel principles. This application was made in light of a prior settlement between the parties under the Compensation to Relatives Act 1987 (NSW). The plaintiff had previously settled claims against the defendant, only to bring new proceedings for mental harm caused by the incident.

The legal issues before the Court were whether the plaintiff's claim was an abuse of process and whether Anshun estoppel principles applied to permanently stay the proceedings. The Court had to consider the nature and scope of the prior settlement and its implications for the current proceedings. It was also necessary to determine whether the principles of Anshun estoppel required the plaintiff to be precluded from pursuing claims arising from the same incident.

The Court dismissed the defendant's application for dismissal or a permanent stay. The Court held that the plaintiff's claim for mental harm was not an abuse of process and did not fall within the scope of the prior settlement. The Court further found that Anshun estoppel did not apply to preclude the plaintiff from bringing the current proceedings. The Court's reasoning emphasised that the prior settlement did not cover the specific claim for mental harm, and thus, the plaintiff was not precluded from pursuing this claim. The Court also noted that the principles of Anshun estoppel did not extend to situations where the claim is distinct and not covered by a prior settlement.

In light of the Court's findings, it ordered that the defendant's amended notice of motion was dismissed, and the defendant was to pay the plaintiff's costs of and incidental to the notice of motion. The Court granted the parties liberty to apply within 14 days to vary the costs order and listed the matter for directions before the presiding Judge of the next sittings of the Court commencing 15 November 2021.

Orders

Orders of the court

Orders at [152]:

1. the defendant’s amended notice of motion filed 10 June 2021 (and any earlier iterations thereof) is (are) dismissed;

2. the defendant is to pay the plaintiff’s costs of and incidental to the notice of motion;

3. the parties are granted liberty to apply within 14 days to vary the costs order;

4. I list the matter for directions before the presiding Judge of the next sittings of the Court commencing 15 November 2021

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Butcher bht Duffy v Habkouk [2021] NSWDC 500
Hearing dates:	10 June 2021 with submissions closing 16 September 2021
Date of orders:	22 September 2021
Decision date:	22 September 2021
Jurisdiction:	Civil
Before:	Wilson SC DCJ
Decision:	Orders at [152]: 1. the defendant’s amended notice of motion filed 10 June 2021 (and any earlier iterations thereof) is (are) dismissed; 2. the defendant is to pay the plaintiff’s costs of and incidental to the notice of motion; 3. the parties are granted liberty to apply within 14 days to vary the costs order; 4. I list the matter for directions before the presiding Judge of the next sittings of the Court commencing 15 November 2021
Catchwords:	CIVIL – Plaintiff’s father died after being struck by the defendant (intentional tort – battery and negligence alleged) – interlocutory application by defendant for dismissal (as an abuse of process) or a permanent stay (on Anshun estoppel principles) – previous proceedings brought and settled by plaintiff against defendant under Compensation to Relatives Act 1987 (NSW) – following settlement of first proceedings second proceedings brought by plaintiff for mental harm.
Legislation Cited:	Civil Liability Act 2002 (NSW) ss 30, 31 Civil Procedure Act 2005 (NSW) s 76(3) Compensation to Relatives Act 1897 (NSW) s 5 Family Law Act 1975 (Cth) Uniform Civil Procedure Rules 2005 (NSW) ss 13.4(1); 13.4(1)(c)
Cases Cited:	Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 Champerslife Pty Ltd v Manojlovski & Anor [2010] NSWCA 33 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] 112 CLR 125 Henderson v Henderson (1843) Eng R 917 Johnson v Gore Wood & Co. [2002] 2 AC 1 Mineralogy Pty Ltd v Sino Iron Pty Ltd [No. 2] (2021) WASCA 105 Port of Melbourne Authority v Anshun (1981) 147 CLR 89 Tomlinson v Ramsey Food Processing Pty Ltd (2015) HCA 28 UBS AG v Tyne [2018] HCA 45
Texts Cited:	None
Category:	Procedural rulings
Parties:	Kalais Ann Butcher (Plaintiff/Respondent) George Joseph Habkouk (Defendant/Applicant)
Representation:	Counsel: Mr R Quickenden (Plaintiff/Respondent) Mr K Andrews (Defendant/Applicant) Solicitors: Brazel Moore Lawyers (Plaintiff) Effective Legal Solutions
File Number(s):	2020/361375
Publication restriction:	None